As a juvenile, Harvey was adjudicated delinquent
in 1994 for committing first degree CSC with a minor. In 1998, at age 19, he
was paroled. Within weeks of being paroled, the State petitioned for Harvey’s
commitment under the SVP Act. In February 1999, a bench trial was conducted,
and the trial court found Harvey to be a sexually violent predator. Harvey
appealed. While the appeal was pending, Harvey received an annual status review,
and a jury trial was held in October 2000 to determine whether his status had
changed. See § 44-48-110. The jury found Harvey should remain committed
under the SVP Act.

Harvey was born in 1978. Prior to turning 14,
Harvey was both the victim of sexual abuse as well as a perpetrator. At the
age of approximately eight, he was molested by a married couple that had a daughter
Harvey’s age. The abuse involved the four engaging in various sexual activities
and went on for a prolonged period of time. Harvey also reported being sexually
assaulted by an older boy where the boy forced Harvey to perform oral sex.

At the age of ten while visiting relatives in Michigan,
Harvey was involved in an incident with twin boys who were at least six years
old. While at the twins’ pool, Harvey suggested they all take off their clothes,
and the three boys walked around naked for about 20 minutes. When the twins’
parents found out, they pressed charges against Harvey. As a result, he attended
a sex offender therapy program in Georgia.
[2]

When Harvey was approximately 13 years old, he
had his younger brother, who was about five years old, perform oral sex on him.
This conduct was the basis for his delinquency adjudication in 1994.

The State presented expert testimony from psychiatrist
Dr. Donna Schwartz-Watts. Dr. Schwartz-Watts diagnosed Harvey with pedophilia.
[3] In her written report, she explained that her diagnosis was based
on Harvey’s “acts over the past that demonstrate he has arousal to children.”
At the bench trial, however, Dr. Schwartz-Watts stated that during her evaluation
of Harvey, he had admitted having “some recurrent urges” even since turning
16. [4] Furthermore, Dr. Schwartz-Watts
opined Harvey met the criteria for a sexually violent predator and that outpatient
treatment was not yet appropriate for Harvey.

On cross-examination, Dr. Schwartz-Watts
stated that Harvey was not a sociopath or an antisocial personality. She explained
she used the DSM-IV criteria to make her diagnosis and that although Harvey’s
past acts did not occur after he was 16, he admitted to her that he had urges
about having sex with children. She acknowledged her written report did not
state that Harvey had recurrent urges over a six-month period.

Over Harvey’s objection, the trial court
allowed into evidence a “Log of Critical Incidents and Clinically Significant
Events” (“the Log”). The Log is an unsigned document kept by the Generations
Group Home (“GGH”), a treatment center for juveniles with sexually aggressive
behaviors. [5] The Log details various incidents involving
Harvey and explanations of these incidents. [6] Dr. Schwartz-Watts reviewed
the Log as part of her evaluation, and she testified “there were some things
there [she] was concerned about.” She also stated, however, that she did not
base her diagnosis on the document.

Harvey objected to the admission of the Log based
on hearsay. He argued it did not comply with the business record hearsay exception
since it contained personal judgments and opinions. See Rule 803(6),
SCRE. The trial court, however, found it only contained “facts and data” and
admitted the document.

As part of Harvey’s
case, he called Dr. Karl Bodtorf as an expert in forensic psychology. Dr. Bodtorf
also evaluated Harvey, but he did not diagnose Harvey with pedophilia. Because
of Harvey’s age at the time of his offense, and the age difference between the
children in the Michigan incident, Dr. Bodtorf did not feel that pedophilia,
as defined by the DSM-IV, was an appropriate diagnosis. In addition, Dr. Bodtorf
reported that Harvey denied interest in children, and he stated that the psychological
testing did not show Harvey had proclivities toward children. Dr. Bodtorf opined
that outpatient treatment, which he could provide, would be an appropriate option
for Harvey.

The trial court found beyond a reasonable doubt
that Harvey suffered from pedophilia and therefore ordered his commitment pursuant
to the SVP Act.

ISSUES

Harvey raises two issues from the February 1999 bench trial:

1.

Did the State fail to offer sufficient evidence Harvey was a sexually violent
predator?

2.

Did the trial court err in admitting the Log?

DISCUSSION

1.
Sufficiency of the Evidence

Harvey argues the evidence
at the bench trial was insufficient to meet two components of the SVP definition:
mental abnormality and likelihood of sexual violence.

In an appeal regarding sufficiency
of the evidence in a SVP case, the appellate court may only reverse the trial
court if there is no evidence to support the trial court’s ruling. In re
Matthews, 345 S.C. 638, 646, 550 S.E.2d 311, 315 (2001), cert.denied,
535 U.S. 1062 (2002). In other words, the court is concerned with the existence
of evidence, not its weight. Id.

Under the SVP Act, the State bears
the burden of proving beyond a reasonable doubt that a person is a sexually
violent predator. See S.C. Code Ann. § 44-48-100 (2002). A sexually
violent predator is defined as a person who: (a) has been convicted of a sexually
violent offense; and (b) suffers from a mental abnormality or personality disorder
that makes the person likely to engage in acts of sexual violence if not confined
in a secure facility for long-term control, care, and treatment. § 44-48-30(1)(a)
& (b). The Act defines “[l]ikely to engage in acts of sexual violence”
to mean the person’s “propensity to commit acts of sexual violence is of such
a degree as to pose a menace to the health and safety of others.” § 44-48-
30(9).

Harvey contends the State failed
to prove he is a pedophile because Dr. Schwartz-Watts’ diagnosis of pedophilia
was inconsistent with the DSM-IV criteria. Specifically, Harvey maintains that
his acts of sexual misconduct which occurred before he was 16 should not be
the basis of a pedophilia diagnosis. Since the DSM-IV criteria clearly indicate
that a pedophilia diagnosis is only appropriate if the person is over 16, we
share Harvey’s concern with the focus placed on his acts. See footnote
3, supra. Moreover, we note the Michigan incident does not satisfy the
DSM-IV criteria since Harvey was not five years older than the twin boys. Nonetheless,
there remain portions of Dr. Schwartz-Watts’ testimony which justify her diagnosis.
She testified that Harvey reported having urges after turning sixteen and her
diagnosis was based on his present mental state. Technically, this meets the
definition of pedophilia. Thus, there was sufficient evidence of a mental abnormality
or disorder. SeeIn re Matthews, supra (the court is concerned
with the existence of evidence, not its weight).

Harvey also argues the State failed
to prove that the pedophilia made him “likely to engage in acts of sexual violence
if not confined in a secure facility for long-term control, care, and treatment.”
Harvey’s argument is based primarily on the United States Supreme Court’s holding
in Kansas v. Crane, 534 U.S. 407 (2002), that there must be proof of
a lack of ability to control behavior.

In In re Luckabaugh, 351
S.C. 122, 568 S.E.2d 338 (2002), this Court noted that the Crane decision
“does not mandate a court must separately and specially make a lack of control
determination, only that a court must determine the individual lacks control
while looking at the totality of the evidence.” Id. at 143, 568 S.E.2d
at 348. The Luckabaugh Court went on to state the following:

Inherent within the mental abnormality
prong of the Act is a lack of control determination, i.e. the individual can
only be committed if he suffers from a mental illness which he cannot sufficiently
control without the structure and care provided by a mental health facility,
rendering him likely to commit a dangerous act.

Id. at 144, 568 S.E.2d
at 349. Thus, the Court concluded the requirements of the SVP Act “are the
functional equivalent of the requirement in Crane.” Id.

Accordingly, given Dr. Schwartz-Watts’
diagnosis of pedophilia and her testimony that Harvey met the statutory SVP
definition, we do not agree the State failed to present evidence of present
dangerousness. SeeIn re Matthews, supra. [7]

2.
Admission of the Log

Harvey next argues the trial court
erred in admitting the Log from GGH over his hearsay objection. We agree.

Hearsay is a statement, which may be written, other
than one made by the declarant while testifying at trial, offered in evidence
to prove the truth of the matter asserted. Rule 801, SCRE. Hearsay is not
admissible unless there is an applicable exception. See Rule 802, SCRE.
The business record exception reads as follows, in pertinent part:

A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, or diagnoses, made at or near the time by,
or from information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum, report, record, or
data compilation, all as shown by the testimony of the custodian or other qualified
witness, unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness; provided, however, that subjective
opinions and judgments found in business records are not admissible.

Rule 803(6), SCRE (emphasis added).

At trial, the State called Terri Copilevitz, the
clinical director at GGH. She stated the Log was a summary “written by our
clinical director at the time and [Harvey’s] treatment coordinator providing
a summary of the critical incidents that [Harvey] had been a part of.” She
explained that “critical incidents” are “the way that we have staff report
to us any behaviors that are significant that need to be followed up
by the clinical staff.” (Emphasis added).

Harvey argues the Log is replete with subjective
opinions and judgments and therefore is inadmissible hearsay. We agree. Even
the description of what this document is indicates its highly subjective nature.
Moreover, it is an unsigned document which repeatedly offers judgments about
the progress of Harvey’s treatment and his behaviors. Because the document
did not meet the business record exception, we hold the trial court erred in
admitting this document. See Rule 803(6), SCRE.

Nonetheless, the State argues that any error is
not prejudicial. We disagree.

Unless the appellant was prejudiced by the erroneous admission
of hearsay, reversal is not required. E.g., State v. Mitchell,
286 S.C. 572, 336 S.E.2d 150 (1985). The Mitchell court explained as
follows:

Whether an error is harmless depends on the circumstances
of the particular case. No definite rule of law governs this finding; rather,
the materiality and prejudicial character of the error must be determined from
its relationship to the entire case. Error is harmless when it “could not reasonably
have affected the result of the trial.”

The State argues there could be no prejudice from
the Log’s admission because the trial court orally indicated it would not consider
this document. The State contends the trial court’s comments from the bench
show it relied primarily on Dr. Schwartz-Watts’ evaluation and testimony in
reaching its decision. However, we note that (1) the trial court admitted the
Log over objection, (2) Dr. Schwartz-Watts specifically commented on it during
her testimony, and (3) the State used it to impeach Dr. Bodtorf’s opinion and
lend support to Dr. Schwartz-Watts’ diagnosis of pedophilia. Therefore, the
Log entered into the trial in a significant way. Moreover, despite the trial
court’s oral comments about the Log, the court’s written order does not state
that it, in fact, disregarded the Log. SeeFord v. State Ethics Comm’n,
344 S.C. 642, 646, 545 S.E.2d 821, 823 (2001) (“The written order is the trial
judge’s final order and as such constitutes the final judgment of the court.”).

Accordingly, we find the erroneous admission of the Log
was not harmless. SeeMitchell, supra.

CONCLUSION

In sum, due to
the erroneous and prejudicial admission of the Log, we reverse the trial court’s
1999 order finding Harvey to be a sexually violent predator.

Because we find error with the
initial determination of SVP status, we need not review the issues raised from
the 2000 annual review trial. Clearly, if Harvey had not been adjudicated a
sexually violent predator in 1999, he would not be confined and subject to annual
review. The sole issue at an annual review trial is whether a person remains
a sexually violent predator. See § 44-48-110 (“The burden of proof at
the trial is upon the State to prove beyond a reasonable doubt that the committed
person’s mental abnormality or personality disorder remains such that
the person is not safe to be at large and, if released, is likely to engage
in acts of sexual violence.”) (emphasis added). Moreover, we note that whatever
the jury found in the 2000 trial certainly could not in any way “cure” an error
that occurred at the initial trial.

REVERSED AND REMANDED.

TOAL, C.J., MOORE,
BURNETT and PLEICONES, JJ., concur.

[1] Because we are reversing from the 1999 proceeding, we confine the
factual presentation to that trial, except where otherwise noted.

[2] We note that at the 1999 trial, the twin boys were repeatedly referred
to as Harvey’s victims. It was not until the review trial in 2000 that the
precise details of this Michigan incident were revealed.

[3] At the State’s request, the trial court took judicial notice of the
Diagnostic and Statistical Manual of Mental Disorders (4th ed.
1994) (“DSM-IV”) as the document regularly relied upon for the diagnosis of
mental disorders. According to the DSM-IV manual, the diagnostic criteria
for pedophilia include:

A.

Over a period of at least
6 months, recurrent, intense sexually arousing fantasies, sexual urges, or
behaviors involving sexual activity with a prepubescent child or children
(generally age 13 or younger);

B.

The fantasies, sexual
urges, or behaviors cause clinically significant distress or impairment in
social, occupational, or other important areas of functioning; and

C.

The person is at least
age 16 years and at least 5 years older than the child or children in Criterion
A.

(Emphasis added).

[4] Dr. Schwartz-Watts evaluated Harvey in January 1999 when Harvey was
age 20.

[5] For a portion of time while Harvey was serving his DJJ sentence,
he was a resident at GGH. According to Dr. Schwartz-Watts’ written report,
Harvey stated that the “dogma” of the GGH program was sexual abstinence and
he was chastised for having sexual fantasies which involved females.

[6] For example, there are entries in the Log focusing on Harvey’s “efforts
to sexualize” female employees of GGH, as well as entries regarding his progress
(and lack of progress) in treatment.

[7] Although we find the State provided sufficient evidence in this case,
we do reiterate that the purpose of the requirements in the SVP Act is to
ensure that these involuntary commitment procedures are “only used
to control a ‘limited subclass of dangerous persons’ and not to broadly
subject any dangerous person to what may be indefinite terms.” Luckabaugh,
351 S.C. at 144, 568 S.E.2d at 349 (citation omitted, emphasis added).